Jharkhand HC :Admissions Made In Pleadings Are Binding U/S 21 of Evidence Act and Cannot Be Retracted At Appellate Stage

11.2 So far as the second plea raised by the Appellant

assailing the impugned Award on the ground that the

claimant injured had sustained no injury by causing the

accident by the offending Truck. This plea of the fact has

been raised on behalf of the Appellant for the first time at

the stage of appeal; While before the learned Tribunal on

behalf of the Appellant Insurance Company in its written

statement has admitted that the claimant Ashim Parveen

@ Nagmi injured had sustained injury in the accident

caused by the contributory negligence of the driver of

Bolero as well as offending Truck. This admission made by

the Appellant-Insurance Company in the pleading of the

written statement is binding upon the Appellant Insurance

Company under Section 21 of Indian Evidence Act and cannot

deviate from the same at the stage of appeal for the first time.

11.7 The Hon’ble Apex Court held in RAMA KT BARMAN (DIED) THR. LRS VERSUS MD. MAHIM ALI & ORS. 2024 LiveLaw SC 637 that it is well settled principle of law that the Court cannot create any new case at the appellate stage for either of parties and Appellate Court is supposed to decide the issue involved in the suit based on pleading of parties.Para 14 reads as under:

14. Apart from the fact that none of the said substantial

questions of law formulated by the High Court were either

raised before the trial court or the appellate court, none of

parties was given any opportunity of leading the evidence on

the said issues. It is well-settled principle of law that the Court

cannot create any new case at the appellate stage for either

of the parties, and the appellate court is supposed to decide

the issues involved in the suit based on the pleadings of the

parties.

IN THE HIGH COURT OF JHARKHAND AT RANCHI

M.A.No. 101 of 2021

National Insurance Company Limited Vs  Asmin Parveen @ Nagmi, 

CORAM :MR. JUSTICE SUBHASH CHAND

Dated: 19.11.2024

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JHARKHAND HC: Supreme Court's Satender Kumar Antil Directive Ignored: High Court Intervenes to Safeguard Individual Rights

 The Hon'ble High Court held that in Category A cases under Para 3 of Satender Kumar Antil, where cognizance is taken and summons issued, “bail applications of such accused on appearance may be decided without the accused being taken in physical custody”. The Magistrate’s action violated this principle, undermining personal liberty. The Court directed training for the Magistrate and allowed petitioners to seek modification of the earlier order.

IN THE HIGH COURT OF JHARKHAND AT RANCHI

A.B.A. No.2439 of 2025

Ruplal Rana,  Vs  The State of Jharkhand.

CORAM : SRI ANANDA SEN, J.

Dated: 03/ 11.06.2025.

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Jharkhand HC: Whether the Motor accident claim tribunal can reject claim petition if all legal heirs of deceased are not added as party to proceeding?

Matter for consideration is whether all the heirs are a necessary party in a claim case. Compensation is assessed on the basis of dependency and not on heirship. Only those who are the dependents shall be entitled to compensation. The entire concept of computation of compensation arising out of the death is based on calculation of the amount on dependency. In Sarla Verma v. DTC, MANU/SC/0606/2009 : (2009) 6 SCC 12 it is held that if the deceased is survived by parents and siblings, only the mother would be considered to be a dependant. The learned Tribunal thus committed a gross error to dismiss the claim application merely on the ground that the all the children of the deceased had not been impleaded. In any case any of the party or parties could have been impleaded as dependants and ordered accordingly. {Para 8}

 IN THE HIGH COURT OF JHARKHAND AT RANCHI

M.A. No. 223 of 2012

Decided On: 13.04.2022

Ugni Bibi Vs. Gobind Ram Hathampuria and Ors.

Hon'ble Judges/Coram:

Gautam Kumar Choudhary, J.

Citation: MANU/JH/0275/2022,2024(3) TAC 59 Jhar.

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Jharkhand HC: Whether motor accident claim petition can be rejected on the ground that some of legal heirs of deceased are not added as party to the petition?

 Matter for consideration is whether all the heirs are a necessary party in a claim case. Compensation is assessed on the basis of dependency and not on heirship. Only those who are the dependents shall be entitled to compensation. The entire concept of computation of compensation arising out of the death is based on calculation of the amount on dependency. In Sarla Verma v. DTC, MANU/SC/0606/2009 : (2009) 6 SCC 12 it is held that if the deceased is survived by parents and siblings, only the mother would be considered to be a dependant. The learned Tribunal thus committed a gross error to dismiss the claim application merely on the ground that the all the children of the deceased had not been impleaded. In any case any of the party or parties could have been impleaded as dependants and ordered accordingly. {Para 8}

IN THE HIGH COURT OF JHARKHAND AT RANCHI

M.A. No. 223 of 2012

Decided On: 13.04.2022

Ugni Bibi Vs. Gobind Ram Hathampuria and Ors.

Hon'ble Judges/Coram:

Gautam Kumar Choudhary, J.

Citation: 2024(3) TAC (Jhar), MANU/JH/0275/2022.

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Summons in a criminal case to face trial cannot be issued against positions or posts as a post is not a juridical person

 Having heard the submissions made at the Bar and after going through the materials in the record, it is pertinent to mention here that by now it is a settled principle of law as has been reiterated by this Court in the case of Santosh Kumar vs. The State of Jharkhand & Anr. (supra) that summons in a criminal case to face trial cannot be issued against positions or post as a post is not juridical person hence, learned Chief Judicial Magistrate, West Singhbhum, Chaibasa has committed illegality by issuing summons against DGM Sail, M/s. RMD Gua Ore Mines more so when such post undisputedly does not even exist. Thus, taking cognizance by not naming any person who was responsible for the alleged criminal act is certainly not sustainable in law. {Para 6}

IN THE HIGH COURT OF JHARKHAND AT RANCHI

Cr.M.P. No. 2956 of 2022

M/s. Steel Authority of India Limited VsThe State of Jharkhand

P R E S E N T

HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY

Dated the 22nd April, 2024.

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Whether the family court should refuse to give maintenance to wife if she is not ready to serve husband’s mother and maternal grandmother?

For disposal of this Criminal Revision following point of

determination are being framed:

(i) Whether the opposite party No.1-wife has refused to live

with her husband without any sufficient cause, if so its

effect? {Para 9}

 21. In view of the above in the case in hand, the issue between the

husband and wife is that the wife is not agree to serve the old aged mother in-law and maternal grandmother-in-law, who are respectively 75 years and 95 years old. She creates pressure upon her husband to live separate from his mother and maternal grandmother. It is the very reason; this ground is not found sufficient that’s why the legislature while enacted under Section 125(4) of the Code of Criminal Procedure has provided one of the grounds for denial the maintenance, if wife refuses to reside with the husband without any reasonable cause.

22. In Constitution of India under Article 51-A of Part IV-A, wherein the fundamental duties of the citizen of India are enumerated in Clause (f), it is provided ‘to value and preserve the reach heritage of our composite culture’. It is the culture in India to serve the old aged mother-in-law or grandmother-in-law as the case may by the wife in order to preserve this culture. It was obligatory on the part of wife to serve her husband’s mother and maternal grandmother and not to insist for unreasonable demand to live separate from his old aged mother-in-law and the maternal grandmother-inlaw. Accordingly, the point of determination No.1 is decided in favourt of the petitioner-husband and against the opposite party No.1-wife.

IN THE HIGH COURT OF JHARKHAND AT RANCHI

Criminal Revision No.172 of 2022

Rudra Narayan Ray Vs  Piyali Ray Chatterjee, 

CORAM : HON’BLE MR. JUSTICE SUBHASH CHAND

 Pronounced on:22/01/2024.

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Is a protest petition maintainable against a doctor if the police have filed a final report after obtaining an expert report?

 On these background, learned counsel for the petitioner submits that it is well settled that if a case against the doctor is filed the requirement of proceeding further examination by the expert as held in the case of “Martin F. D’Souza V. Mohd. Ishfaq” reported in (2009) 3 SCC 1 wherein para 106 the Hon’ble Supreme Court has held as under:-

“106. We, therefore, direct that whenever a complaint is received against a doctor or hospital by the Consumer For a (whether District, State or National) or by the criminal court then before issuing notice to the doctor or hospital against whom the complaint was made the Consumer Forum or the criminal court should first refer the matter to a competent doctor or committee or doctors specialized in the field relating to which the medical negligence is attributed, and only after that doctor or committee reports that there is a prima facie of medical negligence should notice be then issued to the  doctor/hospital concerned. This is necessary to avoid harassment to doctors who may not be ultimately found to be negligent. We further warn the police officials not to arrest or harass doctors unless the facts clearly come within the parameters laid down in Jacob Mathew case, otherwise the policemen will themselves have to face legal action. {Para 5}

11. In the case in hand the learned Magistrate has chosen option no. 4 and doing so he has proceeded in accordance with law. Further, it transpires that the learned court has not taken care of judgement delivered by the Hon’ble Supreme Court in the case of Martin F. D’Souza(supra) as well as “ Jacob Mathew Vs. State of Punjab” reported in 2005 (6) SCC 1.

12. In these two cases the concern of the court was that unnecessarily a bonafide action of any doctor may not be subject matter of civil wrong as well as criminal wrong and in that aspect in both the judgements it has been directed that the case will be proceeded against the doctors after taking expert opinion and the case in hand expert report was there which is contained in annexure-9 and thereafter final form was submitted. In that view of the matter the Court finds that proceeding further on the protest petition when the finding of the expert committee is in favour of the petitioner amounts to abuse of process of law.

13. To put criminal law in motion by examining two witnesses is also deprecated by the Hon’ble Supreme Court in the case of ‘Pepsi Foods Ltd. V. Special Judicial Magistrate’ (1998) 5 SCC 749.

14. In the case in hand, doctor has discharged his responsibility. The operation was successful. The patient was brought to the ward thereafter the condition of the father of father of the O.P. No.2 was deteriorated. In the case of Martin F. D’Souza(supra) the Hon’ble Supreme Court has noted the facts that the courts and the Consumer Forum are not experts in medical science, and must not substitute their own views over that of specialists. It is true that the medical profession has to an extent become commercialized and there are many doctors who depart from their Hippocratic oath for their selfish ends of making money.

However, the entire medical fraternity cannot be blamed or branded as lacking in integrity or competence just because of some bad apples.

15. It is well known that inspite of best effort made by the doctor sometime they are not successful and this does not mean that doctor must be held guilty. The Court comes to the conclusion that the case of the petitioner is fully covered with the aforesaid two judgments of the Hon’ble Supreme Court in the case of Martin F. D’Souza(supra) as well as “ Jacob Mathew Vs. State of Punjab” reported in 2005 (6) SCC 1.

IN THE HIGH COURT OF JHARKHAND AT RANCHI

Cr.M.P. No. 588 of 2013

Dr. Vijay Kumar  Vs The State of Jharkhand

CORAM:MR. JUSTICE SANJAY KUMAR DWIVEDI

Dated: 22/03/2023

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Whether municipal Corporation can remove any encroachment over Municipal property after giving 48 hours notice?

 We are, therefore, not inclined to accept the plea that RMC has powers to remove any encroachment over the municipal property merely by a notice providing 48 hours' time. No such power for removing the encroachments over the municipal property by a simple notice has been conferred by the Legislature either to the Municipal Commissioner or the Chief Executive Officer or any other officer of the municipality, except acting in accordance with the procedure established by law. {Para 47}

JHARKHAND HIGH COURT

LPA No. 143 of 2022

Suresh Tirkey v The Governor With Connected Matters

 Pronounced on 10/08/2022

Per, Shree Chandrashekhar, J .

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What are the powers of the high court in the challenge of disciplinary action against an employee?

 In Union of India v. P. Gunasekaran8, this Court held as follows : (SCC pp. 616-17, paras 12-13)

“12. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, reappreciating even the evidence before the enquiry officer. The finding on Charge I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Articles 226/227 of the Constitution of India, shall not venture into reappreciation of the evidence. The High Court can only see whether:

(a) the enquiry is held by a competent authority;

(b) the enquiry is held according to the procedure prescribed in that behalf;

(c) there is violation of the principles of natural justice in conducting the proceedings;

(d) the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;

(e) the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;

(f) the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;

(g) the disciplinary authority had erroneously failed to admit the admissible and material evidence;

(h) the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;

(i) the finding of fact is based on no evidence.

13. Under Articles 226/227 of the Constitution of India, the High Court shall not:

(i) reappreciate the evidence;

(ii) interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law;

(iii) go into the adequacy of the evidence;

(iv) go into the reliability of the evidence;

(v) interfere, if there be some legal evidence on which findings can be based.

(vi) correct the error of fact however grave it may appear to be;

(vii) go into the proportionality of punishment unless it shocks its conscience.”

 In the High Court of Jharkhand at Ranchi

(Before Deepak Roshan, J.)

W.P.(S) No. 4120 of 2014

Balwant Singh V   Union of India 

Citation: 2020 SCC OnLine Jhar 889

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Whether party in possession of immovable property on basis of agreement of sale can claim adverse possession?

 Similar view on the point of law was taken by the Hon'ble Supreme Court in the case of L.N. Aswathama and Another v. P. Prakash reported in MANU/SC/1222/2009 : (2009) 13 SCC 229, wherein the Hon'ble Supreme Court, while dealing with Section 53A of the Transfer of Properties Act, has held as under:-

"17. The legal position is no doubt well settled. To establish a claim of title by prescription, that is, adverse possession for 12 years or more, the possession of the claimant must be physical/actual, exclusive, open, uninterrupted, notorious and hostile to the true owner for a period exceeding twelve years. It is also well settled that long and continuous possession by itself would not constitute adverse possession if it was either permissive possession or possession without animus possidendi. The pleas based on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced. Unless the person possessing the property has the requisite animus to possess the property hostile to the title of the true owner, the period for prescription will not commence. (Vide P. Periasami v. P. Periathambi [MANU/SC/0821/1995 : (1995) 6 SCC 523], Md. Mohammad Ali v. Jagadish Kalia [MANU/SC/0785/2003 : (2004) 1 SCC 271] and P.T. Munichikkanna Reddy v. Revamma [MANU/SC/7325/2007 : (2007) 6 SCC 59]".

17. Thus, from the aforesaid two judgments, the law is well settled that the claim of perfection of title by adverse possession is not available to the plaintiffs of this case since it is the case of the plaintiffs that they came in possession over the land in question pursuant to an agreement for sale and admittedly, the sale did not take effect. Thus, the possession of the plaintiffs over the land in question cannot be said to be hostile to the true owner even if he has continued in possession for more than 12 years. The possession is nothing, but, permissive.

IN THE HIGH COURT OF JHARKHAND AT RANCHI

Second Appeal No. 152 of 1989

Decided On: 23.07.2019

 Salim Raza  Vs.  Mohan Mistry

Hon'ble Judges/Coram:

Ananda Sen, J.

Citation: AIR 2019 JHAR173

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Whether suit for dissolution of marriage filed by muslim husband is maintainable?

Despite indulgence granted, the learned counsel for the appellant has not been able to show any other provision of law or judgment on the point where such a suit for dissolution of marriage on the part of the Muslim husband under Mohammedan Law is maintainable.

7. Learned counsel for the respondent-wife argued in support of the view taken by the learned Family Court. He submits that none of the provisions under Mohammedan Law permits the husband to obtain the decree of divorce through a judicial declaration. However, other forms of divorce are available to the husband to be exercised, as per the condition stipulated thereunder. Learned Family Court has rightly held that the instant suit is not maintainable.

IN THE HIGH COURT OF JHARKHAND

F.A. No. 187 of 2016

Decided On: 18.06.2018

 Md. Yusuf Vs.  Nasreen Begum

Hon'ble Judges/Coram:

Aparesh Kumar Singh and Ratnaker Bhengra, JJ.

Citation: AIR 2019 Jharkhand  39

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Whether eviction suit filed by one of co-owner is maintainable if some of co-owners had given assent for continuance of tenancy?

Tenancy - Eviction suit - Maintainability of - Bihar Building (Lease, Rent and Eviction) Control Act, 1982 - Present application filed for challenging order of eviction, on ground that eviction suit by some co - owners was not maintainable because other co - owners had given assent for continuance of tenancy - Whether suit for eviction brought by some of co-owners for ejectment of tenant who had incurred liability to be evicted under Act was maintainable - Held, cleared from fact that lease was determined and it was not renewed by Plaintiffs for further period - However, one of co- owners had given his assent to Defendant to continue his possession over suit premises - Appeared that contract for tenancy was one and it was by-lateral contract between parties - One of co-owners had no right to make contract unilateral by splitting interest of other co-owners - Thus, some of co-owners had every right to file suit for evicting tenant who had incurred liability to be evicted under Act - Therefore, suit brought by Plaintiffs was maintainable - Application dismissed. [paras 9 and 11]

IN THE HIGH COURT OF JHARKHAND

Civil Revision No. 20 of 2008

Decided On: 16.04.2014

Shyamdeo Prasad Vs.  Quurban Hussain Hawari

Hon'ble Judges/Coram:

Dhrub Narayan Upadhyay, J.

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Whether court should grant compensation if person authorized to drive vehicle dies due to accident?

Further, this Court also finds that although the plea that the deceased would enter into the shoes of the owner of the vehicle in the circumstances, when he is authorized to drive the vehicle, was not taken by the Insurance Company before the learned court below, but, certainly, there is no doubt, that the liability under the policy would be governed by the terms and conditions of the insurance policy and it was specifically pleaded by the Insurance Company that the liability would be governed by the terms and conditions of the policy. This Court finds that the point regarding extent of liability of the Insurance Company on the ground that the deceased enters into the shoes of the owner, is based on facts as narrated by the claimants and supported by the owner of the vehicle. It is the case of the claimants as well as the owner of the vehicle that the deceased was authorized to driver the vehicle and no additional evidence on this point is required to be adduced by the parties and the specific plea of the appellant insurance company that the liability under such circumstances would at most be to the extent of Rs. 2 lakhs can be considered being a point of law on the facts admitted and projected by the claimants themselves.

IN THE HIGH COURT OF JHARKHAND AT RANCHI

M.A. No. 57 of 2012

Decided On: 25.04.2019

TATA AIG General Insurance Co. Ltd.  Vs.  Shakuntala Ganeriwal and Ors.

Hon'ble Judges/Coram:

Anubha Rawat Choudhary, J.

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Whether it is mandatory for disciplinary authority to issue second show cause notice if he disagree with report given by inquiry officer?

 From perusal of the said supplementary counter affidavit
especially para-4, it is quite clear that the respondents have not issued the
second show cause notice to the petitioner, but punished him after
differing with the findings incorporated in inquiry report. This procedure
which the respondents have adopted is in utter violation of the principles
of natural justice. The petitioner ought to have been issued a second show
cause notice indicating the ground of disagreement, before punishing him.
Thus, the punishment order cannot be sustained in the eyes of law as it
violates the principles of natural justice. Since the punishment cannot be
sustained, the appellate order also needs to be set aside.
8. Thus, I hereby set aside the order of punishment dated
29.09.2010, passed by the Disciplinary Authority as well as the appellate
order dated 10.03.2011, passed by the Appellate Authority.
9. The matter is remitted to the Disciplinary Authority. If the
Disciplinary Authority wants to proceed any further in the matter, he will
issue second show cause notice giving reasons as to why he is differing
with the inquiry report and will thereafter pass a reasoned order in
accordance with law.

IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (S) No. 1884 of 2018

Lalit Oraon Vs  State of Jharkhand

Coram:  Mr. Justice Ananda Sen
Dated:13.03.2019

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How virus of seeking adjournment is to be controlled?

In the case at hand, it can indubitably be stated that the defendant-petitioner has acted in a manner to cause colossal insult to justice and to the concept of speedy disposal of civil litigation. We are constrained to say the virus of seeking adjournment has to be controlled. The saying of Gita "Awake!Arise! Oh Partha" is apt here to be stated for guidance of trial courts."

IN THE HIGH COURT OF JHARKHAND AT RANCHI

W.P. (C) Nos. 2808 and 2834 of 2016

Decided On: 01.12.2016

 Sumermall Jain and Ors. Vs.Tanushree Dutta

Hon'ble Judges/Coram:

Aparesh Kumar Singh, J.

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Whether permanent lok adalat can decide disputes on merit without consent of parties?

The predominant role, to be played by the Permanent Lok Adalat, is of a conciliator and not as a adjudicator. The Permanent Lok Adalat should not wear the robe of tire Court. If the Permanent Lok Adalat will decide the disputes, on merits, perhaps the parties will not go to the Permanent Lok Adalat. The Permanent Lok Adalat must offer the terms of settlement to the parties, looking to their wisdom and experience, as envisaged under Sub-section (7) of Section 22C of the Legal Services Authority Act, 1987 and also looking to the aforesaid decisions, rendered by this Court. The Permanent Lok Adalat should remain slow in deciding the dispute, on merits, unless the parties are made aware of the fact that to the proceedings of the Permanent Lok Adalat, the provisions of Indian Evidence Act, 1872 and the provisions of the Code of Criminal Procedure, 1908 are not applicable and the order, passed by the Permanent Lok Adalat is not an appellable order, as per the provisions of Section 22D of the Legal Services Authority Act, 1987 as also the provisions of Section 22E of the Legal Services Authority Act, 1987 and, thereafter, if the parties are giving their consent, in writing, then only, the Permanent Lok Adalat should venture in deciding the dispute, on merits, otherwise not. Once consent is given by the parties to the dispute, in writing, the Permanent Lok Adalat would decide the dispute, on merits, like an arbitrator. The arbitrator is a Judge privately appointed by the parties and the decision, rendered by the arbitrator, is known as an "award" and only on a limited ground, it can be challenged and not by way of an appeal. Looking to the scheme of the Legal Services Authority Act, 1987, enacted in pursuance of the provisions of Article 39A of the Constitution of India, it appears that the Predominant role of a Permanent Lok Adalat is to arrive at a settlement between the parties. For adjudication, there are several courts and several tribunals. It has been observed by this Court in several Motor Vehicle Accident Claim Cases also that the Permanent Lok Adalats are deciding the disputes, on merits, without there being any consent. It ought to be kept in mind that separate tribunals have already been constituted by law and the members of the Permanent Lok Adalats are sometime retired judges of the district court. Their ability of the judgment to the dispute is not to be checked as a member of the Permanent Lok Adalat. Their ability to arrive at a settlement will be appreciated by the law. Even though they are retired judges, they must remain slow in deciding the disputes, on merits, because they are sitting as a member of the Permanent Lok Adalat and not as a judge in any court.

IN THE HIGH COURT OF JHARKHAND AT RANCHI

Decided On: 25.02.2010

 Branch Manager, Tata AIG General Insurance Co. Ltd. 

Vs.

Mrs. Bandana Devi

Hon'ble Judges/Coram:

Dhirubhai Naranbhai Patel, J.

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Whether permanent lok adalat can grant interim relief in pre-litigation proceeding?

 I have considered the submissions of the parties and gone through the material on record. As per the chronology of facts narrated hereinabove, it is evident that on the date on which the proceedings were instituted as a pre-litigation case under Section 22 of Legal Services Authority Act, i.e., on 31st August, 2015, Bank had proceeded in taking symbolic possession of the property under Section 13(4) of the Act, 2002. An application for taking physical possession of the property through use of force was also pending before Deputy Commissioner Bokaro under Section 14 of the Act of 2002. In that way, any court or authority was precluded from passing any order of injunction in respect of action taken by the Bank/Financial institution in pursuance of the power conferred under the SARFAESI Act, 2002. The P.L.A however proceeded to not only entertain the application as a pre-litigation application but also passed an interim order upon the Bank to maintain status quo and not to take further action against the petitioner. This action of the P.L.A was wholly without jurisdiction. It was in teeth of the provisions of Section 34 of the Act, 2002. Proceeding in P.L.A are to be held in a spirit of conciliation and settlement. Any decision in pre-litigation case on merits under Section 22-C(8) can be passed after following the procedure prescribed under Section 22-C. The procedure has been well interpreted and laid down by learned Single Judge of this Court in the case of Branch Manager, Tata AIG v. Mrs. Bandana Devi reported in MANU/JH/0255/2010 : (2010) 3 JLJR 312 relied upon by the petitioner Bank.

IN THE HIGH COURT OF JHARKHAND AT RANCHI

W.P. (C) No. 6328 of 2015

Decided On: 04.05.2016

Allahabad Bank Vs. Sunita Devi

Hon'ble Judges/Coram:

Aparesh Kumar Singh, J.
Citation:AIR 2017 JHAR 118

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Whether a person below 18 years of age can be appointed as government servant?

For the foregoing discussions, we answer the questions of reference, as follows:-

(i) In view of the specific provision in Rule 73 of the Jharkhand Service Code, 2001, providing the age of compulsory retirement as 60 years (now), a regular Government servant holding the post in substantive capacity, even if appointed prior to the age of 18 years, cannot be superannuated before actually attaining the age of 60 years according to his date of birth recorded in his service records, irrespective of his length of service, treating his age to be 18 years on the date of his appointment.

(ii) In absence of any provision in the Jharkhand Service Code, 2001, prohibiting the appointment of a Government servant prior to the age of 18 years, the appointment of a person prior to attaining the age of 18 years, cannot be said to be against Section 11 of the Indian Contract Act, 1872 read with Section 3 of the Majority Act, 1875.

(iii) Jharkhand Service Code, being a complete Code in itself, and Rule 73 thereof being specific and unambiguous in its terms, there is no scope of taking help of any other law or rule for drawing any inference that the intention of the Legislature was to allow only 40 years (or 42 years now) of service, as the maximum period of service, to which a Government servant can be allowed to continue in Government service. Accordingly, even if a person enters into the service prior to the age of 18 years, he shall be entitled to continue in service, until he actually attains the age of 60 years as per his date of birth recorded in his service records, which is the prescribed age of compulsory retirement from service, irrespective of his length of service.

IN THE HIGH COURT OF JHARKHAND AT RANCHI

L.P.A. No. 262 of 2011

Decided On: 08.05.2017

 The State of Jharkhand and Ors.Vs.Arun Kumar Dhar

Hon'ble Judges/Coram:

Harish Chandra Mishra, Aparesh Kumar Singh and Dr. S.N. Pathak, JJ.

Citation: AIR 2017 JHARKHAND 126 (FB)

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Whether auction sale can be set aside for suppression of material facts?

 Admittedly, the facts noticed hereinabove were not
disclosed to the intending bidders in the E-auction notice
dated 01.03.2016. A bidder would not intend to buy litigation with the
property, which may ensue between the Bank and the Housing Board.
The petitioner has specifically pleaded that on 24.04.2016 he filed an
application for providing a copy of NOC/permission, if any, granted by
the Housing Board for sale of the property in question. The averments
in paragraph no. 18 of the writ petition has been reiterated in
paragraph no. 5(o) of the memorandum of the instant appeal, however,
this assertion has not been controverted by the respondent-Bank. The
Bank has taken a position that there was no pleading in the writ
petition to the effect that while preparing for deposit of the balance bid
amount the petitioner came to know about the aforesaid illegality,
however, in view of the pleadings in the writ petition, particularly in
paragraph no. 18, the defects in the sale notice cannot be ignored.
There is no warrant of the proposition that illegality which would go to
the root of the auction sale must have been discovered by an auction
purchaser during the auction sale and a fact which would vitiate the
auction sale, if discovered subsequently, cannot be taken note of.
Knowledge to the petitioner about nature of the property put on auction
sale, even after the concluded sale, can be looked into to examine the
legality of the sale notice and the auction sale. The fact that the sale
notice was issued on “as is where is basis”, “as it is where it is
basis” and “whatever there is basis”, would not attach legality to the
auction sale inasmuch as, knowledge of the defect in property cannot
be imputed to an intending purchaser. Such covenants cannot
overcome the fatal defect in auction notice and the auction conducted
by suppressing vital informations must be held illegal.
16. The Bank was under a duty to disclose all relevant
facts including, the fact that the property put on auction sale was a
lease-hold property and it belongs to the Housing Board. This is a
basic requirement of fair play in action and more so, in case of a Public
Sector Bank. The auction sale which proceeded on a
misrepresentation to the intending bidders is definitely illegal and is
liable to be quashed. The terms and conditions of an illegal auction
sale cannot be enforced by the respondent-Bank, and accordingly
Clause-13 of E-auction notice which provides forfeiture of the amount
deposited by successful bidder in the event of failure to deposit the bid
amount within the stipulated time cannot be resorted to by the
respondent-Bank to forfeit EMD and 25% of the bid amount deposited
by the appellant. Dismissal of the writ petition on the ground that the
appellant-writ petitioner himself invoked jurisdiction of this Court
seeking a direction upon the Bank to confirm the sale and issue Sale
Certificate, is not justified. The writ petition was decided without
affording an opportunity to the Housing Board to file its response, as is
apparent from the proceeding in W.P.(C) No.2181 of 2016, which was10.
disposed of on the very first day of hearing. In view of the objection
raised by the Housing Board to the auction sale of its property, the
direction issued by the Writ Court to the respondent Bank to take steps
for execution of lease in the name of the appellant is also rendered
erroneous. Considering the aforesaid facts, we are of the opinion that
the impugned order dated 26.04.2016 passed in W.P.(C) No.2181 of
2016 suffers from serious error in law.
 IN THE HIGH COURT OF JHARKHAND AT RANCHI
 L.P.A. No. 220 of 2016

Kumar Rohit, 
 V
Allahabad Bank, 
CORAM:  MR. JUSTICE VIRENDER SINGH, CHIEF JUSTICE
  MR. JUSTICE SHREE CHANDRASHEKHAR

 Dated:26th July, 2016.
Citation: AIR 2017 Jharkh 65

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When it is not permissible for bank to forfeit amount deposited by successful bidder in Auction sale?

 Another issue which was debated during the course of
hearing of the instant Letters Patent Appeal, is whether forfeiture of the
amount deposited by the appellant would amount to unjust enrichment
of the respondent-Bank. The learned Senior counsel for the appellant
contended that in the subsequent auction vide E-auction notice
published in the Newspaper on 07.05.2016 the borrower himself has
paid all dues to the Bank, which issued “No Dues Certificate” to the
borrower vide letter dated 23.06.2016 and therefore, appropriation of
Rs.31,25,000/- deposited by the appellant would be unjust retention of
the said amount by the Bank amounting to unjust enrichment.
Mr. P.A.S. Pati, the learned counsel for the respondent-Bank, however,
contended that on account of failure of the appellant to deposit the
balance bid amount, the auction failed and the Bank was constrained
to re-auction the property. The amount deposited by the appellant has
to be forfeited in terms of the conditions attached to E-auction notice
dated 01.03.2016, and if, the Courts interfere with the matters like the
present one, no auction would ever be concluded.
18. The Contract Act, 1872 recognizes the principle of
unjust enrichment in Section 72. This principle is infact foundation
for the law governing restitution. The retention of money or property of
another against the principle of justice, equity and good conscience
has been held by the Courts “unjust enrichment”. On admitted facts,
forfeiture of the amount deposited by the successful bidder, for sale of
a property which the respondent-Bank could not have sold in auction
sale without prior approval of the Housing Board and after realizing its
dues from the borrower, would certainly amount to unjust enrichment.
The respondent-Bank cannot legally retain EMD and 25% of the bid
amount deposited by the appellant.

 IN THE HIGH COURT OF JHARKHAND AT RANCHI
 L.P.A. No. 220 of 2016

Kumar Rohit, 
 V
Allahabad Bank, 
CORAM:  MR. JUSTICE VIRENDER SINGH, CHIEF JUSTICE
  MR. JUSTICE SHREE CHANDRASHEKHAR

 Dated:26th July, 2016.
Citation: AIR 2017 Jharkh 65

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